PRP Architects v Reid
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lady Justice Smith,Lord Justice Neuberger |
| Judgment Date | 28 July 2006 |
| Neutral Citation | [2006] EWCA Civ 1119 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2006 |
| Docket Number | Case No: B3/2005/1359 |
[2006] EWCA Civ 1119
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HER HONOUR JUDGE FABER
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lady Justice Smith and
Lord Justice Neuberger
Case No: B3/2005/1359
(SQ307038)
MR P VINCENT (instructed by Messrs Berrymans Lace Mawer, Birmingham) for the Appellants
MR T HUCKLE (instructed by Messrs Cooks) for the Respondent
This is an appeal against the judgment of Her Honour Judge Faber, sitting at the Central London County Court on 10 June 2005, by which she found PRP Architects ("the appellants") liable in damages for personal injuries to Ms Precious Reid ("the respondent") by reason of a breach of statutory duty, namely breach of Regulation 5 of the Provision and Use of Work Equipment Regulations 1998 ("the 1998 Regulations") . At the hearing, claims by the respondent against managing agents of the building where the accident occurred, Messrs Kinney Green, and Industrial Lift Services Limited, who had a contract with the managing agents for the service and maintenance of a lift, were not pursued. I will refer to the pleaded claim in negligence at a later stage. The trial was on the issue of liability only.
The respondent was employed by the appellants, a firm of architects, as a receptionist at office premises at 1, Lindsey Street, Smithfield, London EC1. The building was owned by the Corporation of the City of London. A part of the second floor, known as suite B, was let to the appellants under a ten year lease dated 9 July 1998. Access to the offices was by means of stairs and of a lift, both of which opened into a lobby area on the ground floor. The lift, stairs and lobby area were common parts of the premises, as defined in the lease, and were not let to the appellants. The evidence as to the size of the building and the use made of it was sparse. On the second floor, there were two tenants in addition to the appellants. The first floor was occupied by another commercial tenant.
The respondent was injured on 20 November 2000 when leaving the lift on the ground floor at the end of her working day. Her shoulder bag fell from her shoulder. As she reached down to pick it up, the lift door closed trapping her right hand. At the trial, it was conceded that safety devices which should have prevented the door from closing on the respondent's hand did not work. A defect led to a power failure and prevented their operation. The respondent sustained a crushing injury to her right wrist and the base of her right thumb. It is conceded that, if the 1998 Regulations imposed statutory duties on the appellants with respect to the lift and to the use made of it by the respondent at the material time, the appellants were in breach of Regulation 5.
Regulation 5(1) of the 1998 Regulations provides:
"Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair".
"Work equipment" is defined in Regulation 2 as meaning "any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not)". Regulation 3(2) of the 1998 Regulations provides:
"The requirements imposed by these Regulations on an employer in respect of work equipment shall apply to such equipment provided for use or used by an employee of his at work".
The 1998 Regulations were enacted pursuant to Council Directive 89/655/EEC of 30 November 1989 concerning the minimum safety and health requirements for the use of work equipment by workers at work. In Article 2(a) of the Directive, "work equipment" is defined as "any machine, apparatus, tool or installation used at work". Article 3(1) provides:
"The employer shall take the measures necessary to ensure that the work equipment made available to workers in the undertaking and/or establishment is suitable for the work to be carried out or properly adapted for that purpose and may be used by workers without impairment to their safety or health".
Article 3(1) goes on to require the employer to pay attention to specific working conditions and characteristics and to hazards which exist at the work place when "selecting the work equipment which he proposes to use".
The definition of "work equipment" in the 1998 Regulations thus closely follows the language of Article 2(a) of the Directive. Attention was drawn to the 5th preambular paragraph to the Directive in support of the appellants' submission that the 1998 Regulations should not be given the wide-ranging application for which the respondent contends:
"Whereas, pursuant to the said Article [Article 118a of the Treaty] such directives must avoid imposing administrative, financial and legal constraints in a way in which would hold back the creation and development of small and medium-sized undertakings"
The 8th preambular paragraph provides:
"Whereas compliance with the minimum requirements designed to guarantee a better standard of safety and health in the use of work equipment is essential to ensure the safety and health of workers".
The 1998 Regulations replaced the Provision and Use of Work Equipment Regulations 1992. There are differences in wording between the two sets of Regulations. We have not been provided with information from which to know why it was considered appropriate to replace the first with the second within a comparatively short time.
Claims were also pleaded under the Workplace (Health Safety and Welfare) Regulations 1992 ("the Workplace Regulations") and Section 1 of the Employers Liability (Defective Equipment) Act 1969 ("the 1969 Act") . Having found for the respondent under the 1998 Regulations, the judge declined to make findings on the other pleaded grounds.
The evidence as to the extent of the use made of the lift by the respondent was also sparse. However, the judge found, and was entitled to find, that in addition to using the lift in order to obtain access to and egress from the appellants' premises on the second floor, the respondent "used the lift in the course of running errands for her employers". There was no evidence as to the frequency of such errands.
9. The judge found that the appellants "provided" the lift for use by the respondent at work and also that she used it at work with their permission. She found that the lift was "work equipment" within the meaning of Regulation 2(1) of the 1998 Regulations and that the lift was defective so that there was a breach of Regulation 5(1) of the 1998 Regulations. The judge found that, for Regulation 5 to apply, it was not necessary for the employee to suffer injury in the course of her employment but also held that she was in fact in the course of her employment when injured.
The appellants submit that the lift was not at the material time an "installation for use at work", within the meaning of the 1998 Regulations, and not therefore "work equipment" within the meaning of Regulations 3 and 5. The lift was not "provided for use by an employee", and not "used by an employee at work" within the meaning of Regulation 3(2) . Further, Article 3 of the Directive applies to work equipment "made available to workers in the undertaking and/or establishment" which would not cover a lift outside the appellants' premises and not owned, leased, rented or maintained by the appellants. The 1998 Regulations should be construed on that basis, it is submitted. Further, for the Regulations to operate, the respondent had to establish that she was acting in the course of her employment and, having left the employer's premises at the end of the day, she was not so acting.
Under the lease, the appellants had rights of passage in the lifts in the building during normal working hours for the purpose of gaining access to and from the demised premises (Schedule, paragraph 2(B) (iii)) . The appellants paid service charges under the lease for "reasonable and proper outlay" on work including "repairing, maintaining and renewing as appropriate the lifts" (Schedule, Part III (q)) . The landlords were required, under Clause 6(b) of the lease, to "carry out the works referred to in sub-clause (a) and (b) of Clause 2". That clause refers to the services specified in paragraph 5(C) of the schedule, which includes Part III (q) already mentioned. The evidence of the appellants' Financial Director, Mr Griffiths, was that the appellants could have made the landlords comply with that obligation. While it is not relevant to the dispute between the present parties, the lease also provided (Schedule paragraph 2(B) (iii)) that the landlords shall "not be responsible to any person using the said lifts for any neglect or default of any servant or any agent of the landlords in the operation of the said lifts or for any loss damage or injury resulting therefrom …"
Having been referred to the appellants' skeleton argument which was submitted to the judge, and to her judgment, it is clear that the appellants did not argue that the lift fell outside the definition of "work equipment" in Regulation 2 of the 1998 Regulations, subject, that is, to argument as to the effect of the words "for use at work" in the Regulations. Before this court, Mr Vincent, for the appellants, sought to argue, though somewhat faintly, that the lift was not work equipment.
I have to say that I do not find the definition an easy one to apply. As Lord Wilberforce stated, when considering the word "installation" in its probably more common use as describing an action or process, in Engineering Industry Training Board v Foster Wheeler John Brown...
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